FGM: prosecution and prevention

Nkumbe Ekaney QC and Charlotte Proudman examine the impact of the first FGM case litigated in care proceedings

A study by Equality Now and City University estimated that about 103,000 women aged 15-49 who had emigrated to England and Wales from female genital mutilation (FGM) practising countries were living with the consequences of FGM.

Another 10,000 under the age of 15 had undergone FGM or were at risk of being mutilated. Despite introducing a specific criminal offence of FGM in 1985 there has only been one unsuccessful prosecution in the UK.

The recent case of B & G (Children) No 2 [2015] EWFC 3 before Sir James Munby, President of the Family Division, was, we believe the first time the issue of FGM has been litigated in care proceedings. Due to the importance of the subject, this judgment is confined to FGM. A separate judgment deals with the other issues in the case. The care proceedings concern G, a girl, now aged 3, and B, a boy, now aged 4. On evidence, the local authority was unable to establish that G either had been or was at risk of being subjected to any form of FGM.

The case further addresses the definition of FGM, the standard expected of expert witnesses, whether any form of FGM is “significant harm” satisfying the threshold criteria, broader welfare considerations, and the need for local authorities and the courts to take preventative action.

Definition of FGM

The President adopted the internationally recognised World Health Organisation (WHO) classification of FGM. It divides FGM into four major types:

Type I: Partial or total removal of the clitoris and/or the prepuce (clitoridectomy).

Type II: Partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (excision).

Type III: Narrowing of the vaginal orifice with creation of a covering seal by cutting and appositioning the labia minora and/or the labia majora, with or without excision of the clitoris (infibulation).

Type IV: Unclassified: All other harmful procedures to the female genitalia for non-medical purposes, for example, pricking, piercing, incising, scraping and cauterisation.

It was alleged in B & G that FGM Type IV had occurred through a nicking or cut resulting in a scar adjacent to the child’s left clitoral hood. We believe that there is a subtle distinction between the WHO definition of FGM and the definition of FGM in the Female Genital Mutilation Act 2003; the criminal law prohibits excising, infibulating or otherwise mutilating the whole or any part of the labia majora, labia minora or the clitoris. This brings WHO Types I, II, and III in the ambit of criminal law, but WHO Type IV is only encompassed in criminal law if it involves “mutilation”. The word “mutilation” is not defined in statute and there is no case law to clarify the definition.

Expert evidence

Both parents denied that G has ever been subjected to FGM. The question turned on the evidence of the three experts. The child was examined with the assistance of a colposcope by Comfort Momoh MBE, a registered midwife who has an honorary doctorate from Middlesex University and by Dr Alison Share, a consultant community paediatrician. They reported a scar to the left clitoris. The third expert, Professor Creighton, a consultant obstetrician and gynaecologist, could not confirm the presence of the scar after observing the DVD imaging. The President preferred the evidence of Professor Creighton who was found to be an impressive witness. Dr Share’s oral evidence changed from her initial report after she accepted her original findings were wrong. Meanwhile, Dr Momoh’s oral evidence was found to be “exceedingly unsatisfactory” and her written report was “a remarkably shoddy piece of work”. The President reiterated the standard expected of experts in family proceedings. Drawing on Professor Creighton’s evidence, the President outlined the following lessons that are to be learnt:

There is a dearth of medical experts in relation to FGM in young children. Training of medical professions is imperative.

The knowledge and understanding of FGM must be based on the WHO classification.

Careful planning should be made when instructing an expert to ensure the appropriate level of expertise. Referrals should ideally be made to FGM specialist clinics; there are only 12 clinics throughout the country.

Whoever is conducting the examination, the colposcope should be used wherever possible.

It is important that notes and opinions in relation to the case are as detailed as possible.

Significant harm: s 31 Children Act 1989

The President found that all types of FGM constituted “significant harm” within s 31 of the Children Act 1989. FGM is a criminal offence and an abuse of human rights. It has no religious basis.

In Re B (Care Proceedings: Appeal) [2013] UKSC 33 (para 185) Baroness Hale concluded that an act was significantly harmful if, having regard not merely to its physical characteristics but also to its trauma and potential psychological consequences, it could not be said to be “trivial” or “unimportant”. As such, Munby P concluded that any form of FGM, including FGM WHO Type IV, amounted to “significant harm”. In Fornah v Secretary of State for the Home Department [2005] EWCA Civ 680, Auld LJ (para 1) described FGM as “an evil practice internationally condemned and in clear violation of Art 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950”. Parallels were drawn between FGM and forced marriage. Both practices were dehumanising and gross abuses of human rights.

Male circumcision is the removal of some, or all, of the prepuce (foreskin), the retractable fold of skin that surrounds and covers the glans of the penis, so as to expose the glans. It is plainly more invasive than certain forms of Type IV FGM. Furthermore, we believe that male circumcision is rarely performed for therapeutic reasons. It is generally justified on religious grounds, or sometimes for cultural or conventional reasons. The moral, ethical and medical controversy on the subject is well documented and we do not address this in this article.

The President concluded that all types of FGM and male circumcision constitute “significant harm”. The exercise does not end there. The rationale for the distinction between FGM and male circumcision is provided by the second limb of the statutory test with regard to “reasonable parenting” pursuant to s 31 (2) (b)(i) of the Children Act 1989. The President concluded that FGM could never constitute “reasonable parenting”. Male circumcision was different. Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious, cultural and conventional reasons. In contrast, the law and society are unwilling to tolerate any form of FGM. The President outlined two important distinctions between FGM and male circumcision. There is no religious justification for FGM, whereas male circumcision is often performed for religious reasons. FGM has no medical or health benefits; male circumcision is regarded by some as providing hygienic and medical advantages. Thus “reasonable parenting” permits male circumcision. Accordingly FGM satisfies the threshold criteria in Children Act 1989, while male circumcision does not.

Welfare considerations

Broader welfare considerations are triggered by the type of FGM and other threshold findings. The President highlighted two significant points in FGM cases regarding the welfare evaluation and proportionate outcome. First, FGM is often a single act with no threat of future mutilation. Unless there are girl siblings who are at risk of FGM, how does this single act of violation feature in the welfare evaluation? Second, if a girl who is cut has a brother and if FGM is the only threshold factor, there is no statutory basis for care proceedings for that brother. In this case, should the girl be separated from her sibling, or should the family unit be maintained? The President reiterated that given the complexity of balancing welfare arguments, local authorities and judges are advised not to jump to the conclusion that FGM should lead to adoption. In fact, in the case of B & G, the local authority changed its initial care plan for adoption on the basis of the single act of FGM, after the President queried the care plan.

Prevention

Given the harm caused by FGM, local authorities are strongly encouraged to take a proactive approach to prevent it. The President reiterated the legal remedies provided by ss 31 and 100 of the Children Act 1989 available to the family court when faced with a case of actual or threatened FGM. In addition, FGM Protection Orders will soon be introduced into law, once the Serious Crime Bill has been given Royal Assent. FGM Protection Orders have been modelled on Forced Marriage Protection Orders. They are a civil remedy that can be ordered by family law courts to protect girls and women at risk of FGM, and in situations where girls or women need protection after FGM has already been carried out. As a member of the Bar of Human Rights Committee Working Group on FGM, Charlotte Proudman assisted in drafting the legislation for Parliament.

Implications for future cases

We consider that future care cases in which allegations of FGM are made are likely to be single issue cases. The investigation of the allegation should be rigorous and in line with the President’s clear guidance in B & G. The inhumane and degrading practice of FGM cannot be overemphasised. Perhaps the more difficult questions surround the welfare evaluation and proportionality considerations in families with children of different sexes and ages.

Nkumbe Ekaney QC (With Pamela Warner) appeared for the father in B & G and is a member of Albion Chambers and a door tenant at Zenith Chambers

Charlotte Proudman Barrister and PhD candidate in law and sociology at the University of Cambridge researching FGM in the UK

Charlotte has taken sabbatical from practice as a family law barrister to undertake a PhD in Sociology and Law at the University of Cambridge. Charlotte is researching the legal approaches designed to eliminate female genital mutilation in the UK.

FGM: prosecution and prevention

Another 10,000 under the age of 15 had undergone FGM or were at risk of being mutilated. Despite introducing a specific criminal offence of FGM in 1985 there has only been one unsuccessful prosecution in the UK.

The recent case of B & G (Children) No 2 [2015] EWFC 3 before Sir James Munby, President of the Family Division, was, we believe the first time the issue of FGM has been litigated in care proceedings. Due to the importance of the subject, this judgment is confined to FGM. A separate judgment deals with the other issues in the case. The care proceedings concern G, a girl, now aged 3, and B, a boy, now aged 4. On evidence, the local authority was unable to establish that G either had been or was at risk of being subjected to any form of FGM.

The case further addresses the definition of FGM, the standard expected of expert witnesses, whether any form of FGM is “significant harm” satisfying the threshold criteria, broader welfare considerations, and the need for local authorities and the courts to take preventative action.

Definition of FGM

The President adopted the internationally recognised World Health Organisation (WHO) classification of FGM. It divides FGM into four major types:

Type I: Partial or total removal of the clitoris and/or the prepuce (clitoridectomy).

Type II: Partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (excision).

Type III: Narrowing of the vaginal orifice with creation of a covering seal by cutting and appositioning the labia minora and/or the labia majora, with or without excision of the clitoris (infibulation).

Type IV: Unclassified: All other harmful procedures to the female genitalia for non-medical purposes, for example, pricking, piercing, incising, scraping and cauterisation.

It was alleged in B & G that FGM Type IV had occurred through a nicking or cut resulting in a scar adjacent to the child’s left clitoral hood. We believe that there is a subtle distinction between the WHO definition of FGM and the definition of FGM in the Female Genital Mutilation Act 2003; the criminal law prohibits excising, infibulating or otherwise mutilating the whole or any part of the labia majora, labia minora or the clitoris. This brings WHO Types I, II, and III in the ambit of criminal law, but WHO Type IV is only encompassed in criminal law if it involves “mutilation”. The word “mutilation” is not defined in statute and there is no case law to clarify the definition.

Expert evidence

Both parents denied that G has ever been subjected to FGM. The question turned on the evidence of the three experts. The child was examined with the assistance of a colposcope by Comfort Momoh MBE, a registered midwife who has an honorary doctorate from Middlesex University and by Dr Alison Share, a consultant community paediatrician. They reported a scar to the left clitoris. The third expert, Professor Creighton, a consultant obstetrician and gynaecologist, could not confirm the presence of the scar after observing the DVD imaging. The President preferred the evidence of Professor Creighton who was found to be an impressive witness. Dr Share’s oral evidence changed from her initial report after she accepted her original findings were wrong. Meanwhile, Dr Momoh’s oral evidence was found to be “exceedingly unsatisfactory” and her written report was “a remarkably shoddy piece of work”. The President reiterated the standard expected of experts in family proceedings. Drawing on Professor Creighton’s evidence, the President outlined the following lessons that are to be learnt:

There is a dearth of medical experts in relation to FGM in young children. Training of medical professions is imperative.

The knowledge and understanding of FGM must be based on the WHO classification.

Careful planning should be made when instructing an expert to ensure the appropriate level of expertise. Referrals should ideally be made to FGM specialist clinics; there are only 12 clinics throughout the country.

Whoever is conducting the examination, the colposcope should be used wherever possible.

It is important that notes and opinions in relation to the case are as detailed as possible.

Significant harm: s 31 Children Act 1989

The President found that all types of FGM constituted “significant harm” within s 31 of the Children Act 1989. FGM is a criminal offence and an abuse of human rights. It has no religious basis.

In Re B (Care Proceedings: Appeal) [2013] UKSC 33 (para 185) Baroness Hale concluded that an act was significantly harmful if, having regard not merely to its physical characteristics but also to its trauma and potential psychological consequences, it could not be said to be “trivial” or “unimportant”. As such, Munby P concluded that any form of FGM, including FGM WHO Type IV, amounted to “significant harm”. In Fornah v Secretary of State for the Home Department [2005] EWCA Civ 680, Auld LJ (para 1) described FGM as “an evil practice internationally condemned and in clear violation of Art 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950”. Parallels were drawn between FGM and forced marriage. Both practices were dehumanising and gross abuses of human rights.

Male circumcision is the removal of some, or all, of the prepuce (foreskin), the retractable fold of skin that surrounds and covers the glans of the penis, so as to expose the glans. It is plainly more invasive than certain forms of Type IV FGM. Furthermore, we believe that male circumcision is rarely performed for therapeutic reasons. It is generally justified on religious grounds, or sometimes for cultural or conventional reasons. The moral, ethical and medical controversy on the subject is well documented and we do not address this in this article.

The President concluded that all types of FGM and male circumcision constitute “significant harm”. The exercise does not end there. The rationale for the distinction between FGM and male circumcision is provided by the second limb of the statutory test with regard to “reasonable parenting” pursuant to s 31 (2) (b)(i) of the Children Act 1989. The President concluded that FGM could never constitute “reasonable parenting”. Male circumcision was different. Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious, cultural and conventional reasons. In contrast, the law and society are unwilling to tolerate any form of FGM. The President outlined two important distinctions between FGM and male circumcision. There is no religious justification for FGM, whereas male circumcision is often performed for religious reasons. FGM has no medical or health benefits; male circumcision is regarded by some as providing hygienic and medical advantages. Thus “reasonable parenting” permits male circumcision. Accordingly FGM satisfies the threshold criteria in Children Act 1989, while male circumcision does not.

Welfare considerations

Broader welfare considerations are triggered by the type of FGM and other threshold findings. The President highlighted two significant points in FGM cases regarding the welfare evaluation and proportionate outcome. First, FGM is often a single act with no threat of future mutilation. Unless there are girl siblings who are at risk of FGM, how does this single act of violation feature in the welfare evaluation? Second, if a girl who is cut has a brother and if FGM is the only threshold factor, there is no statutory basis for care proceedings for that brother. In this case, should the girl be separated from her sibling, or should the family unit be maintained? The President reiterated that given the complexity of balancing welfare arguments, local authorities and judges are advised not to jump to the conclusion that FGM should lead to adoption. In fact, in the case of B & G, the local authority changed its initial care plan for adoption on the basis of the single act of FGM, after the President queried the care plan.

Prevention

Given the harm caused by FGM, local authorities are strongly encouraged to take a proactive approach to prevent it. The President reiterated the legal remedies provided by ss 31 and 100 of the Children Act 1989 available to the family court when faced with a case of actual or threatened FGM. In addition, FGM Protection Orders will soon be introduced into law, once the Serious Crime Bill has been given Royal Assent. FGM Protection Orders have been modelled on Forced Marriage Protection Orders. They are a civil remedy that can be ordered by family law courts to protect girls and women at risk of FGM, and in situations where girls or women need protection after FGM has already been carried out. As a member of the Bar of Human Rights Committee Working Group on FGM, Charlotte Proudman assisted in drafting the legislation for Parliament.

Implications for future cases

We consider that future care cases in which allegations of FGM are made are likely to be single issue cases. The investigation of the allegation should be rigorous and in line with the President’s clear guidance in B & G. The inhumane and degrading practice of FGM cannot be overemphasised. Perhaps the more difficult questions surround the welfare evaluation and proportionality considerations in families with children of different sexes and ages.

Nkumbe Ekaney QC (With Pamela Warner) appeared for the father in B & G and is a member of Albion Chambers and a door tenant at Zenith Chambers

Charlotte Proudman Barrister and PhD candidate in law and sociology at the University of Cambridge researching FGM in the UK

Nkumbe Ekaney QC and Charlotte Proudman examine the impact of the first FGM case litigated in care proceedings

A study by Equality Now and City University estimated that about 103,000 women aged 15-49 who had emigrated to England and Wales from female genital mutilation (FGM) practising countries were living with the consequences of FGM.